New South Wales Court of Criminal Appeal CITATION: Davis v Regina [2010] NSWCCA 258 HEARING DATE(S): 14/10/10 JUDGMENT DATE: 9 December 2010 JUDGMENT OF: McClellan CJatCL at 1; Kirby J at 2; Hoeben J at 62 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW - supply of prohibited drug ss 25(1) and 29 Drug Misuse and Trafficking Act 1985 - appeal against conviction - whether judge's comment suggested accused obliged to give evidence - possessin of drug the only issue - whether direction on inferences adequate - whether verdict unreasonable or unsupported by evidence. LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 CATEGORY: Principal judgment Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531 CASES CITED : The Queen v Clarke (1995) 78 A Crim R 226 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 PARTIES: Craig Campbell Davis (App) Regina (Resp/Crown) FILE NUMBER(S): CCA 2009/10281 COUNSEL: T Gartelmann (App) J A Girdham (Resp/Crown) SOLICITORS: Ryan & Bosscher (App) S Kavanagh (Resp/Crown) LOWER COURT JURISDICTION: District Court LOWER COURT JUDICIAL OFFICER: Blackmore DCJ LOWER COURT DATE OF DECISION: 25/2/10 IN THE COURT OF CRIMINAL APPEAL 2009/10281 McCLELLAN CJ at CL KIRBY J HOEBEN J Thursday 9 December 2010 Craig Campbell DAVIS v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Kirby J. 2 KIRBY J: On 9 November 2009, Craig Campbell Davis (the appellant) was arraigned before Blackmore DCJ and a jury upon a charge that, on 26 February 2009, he supplied a prohibited drug, namely, 3, 4 ethylenedioxy methyl amphetamine, contrary to ss 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 ("the Act"). Mr Davis pleaded not guilty. After a short trial, the jury returned a verdict of guilty at 10.09 am on 11 November 2009. 3 On 25 February 2010, the appellant was sentenced to imprisonment with a non parole period of 1 year and 1 month (11.11.09 to 10.12.10) and an additional term of 1 year 2 months to expire on 10.2.12 (taking account of a matter on a Form 1). The matter on the Form 1 was a small quantity of cannabis found in his home unit at the time of a search that I will shortly describe. 4 Mr Davis appeals against his conviction. There is no appeal against sentence. Before going to the Notice of Appeal, I should briefly describe the evidence at trial. The Crown case. 5 It was an unusual Crown case. Evidence was led, without objection, that on 24 February 2007 at Currumbin on the Gold Coast, Queensland, the police were called to a holiday home unit. Shortly after their arrival, two men came to the unit, having been on the beach. One was Mr Davis and the other his friend, Mr Terrence Day. 6 The police then conducted a search of the unit. There were two bedrooms. Mr Davis occupied the main bedroom, as he acknowledged. Mr Day was in the smaller bedroom. Within the main bedroom there was a walk-in wardrobe, where the police located the following: A backpack with an electronic money counter, a Clipseal plastic bag with 30 grams of cocaine and a bullet-style inhaler containing powder residue; A further (Rip Curl) backpack with three vacuum sealed plastic bags containing two parcels of 130 grams and a further parcel with 150 grams of cocaine powder. Also within the backpack was a telescopic baton and a wallet with cards in the name of "Craig C Davis"; Underneath a laptop computer there was a total of $605 in notes; There was a further yellow bag with a total of $8,550 in $50 notes. The bag also contained notes and coins totalling $788, one cheque in the amount of $95, and flyers relating to a martial arts business; Within the yellow bag, there were also four Clipseal plastic bags containing numerous Clipseal plastic bags of various sizes; 7 On a bedside table, within the master bedroom, there were three mobile telephones. 8 In the second bedroom, occupied by Mr Day, the police located the following: A black bag with notes totalling $1,800 and one Clipseal plastic bag; There was also further cash ($104) and three mobile phones; A Rip Curl pouch was found on a bedside table, with plastic clip bags containing a total of 18 ecstasy tablets with a Ying Yang imprint. 9 Mr Davis was charged with the possession of cocaine and Mr Day with the possession of ecstasy tablets. When questioned by the police, Mr Davis provided the address of a home unit in Dee Why which he owned. Mr Day told the police that he had changed his address "about a week ago". He could not recall his current address. He identified his previous address, which was different from the appellant's residential address at Dee Why. 10 The Queensland police immediately communicated the information concerning Mr Davis to the police at Dee Why. On 26 February 2007, Senior Constable Barby went to that address. The home unit was within a security building. No-one was at home. A search warrant was then obtained and the police returned with a locksmith. By this means they gained access to the unit. 11 The unit was on the ground floor. It had a balcony, a master bedroom as well as a living room and kitchen. The search was videotaped. Within the bedroom there was a queen sized bed and wardrobe. Under the bed there was a Samurai sword. Within the wardrobe, on the same shelf, there were the following items: A white envelope with cash totalling $2,250; One large resealable plastic bag containing four cling wrapped parcels of white tablets with a Ying Yang imprint. The tablets were later determined to be ecstasy. Together they weighed 66.6 grams (with a purity of about 35%, which was average). The two largest bags contained 100 tablets each and the two smallest bags 50 tablets each (300 tablets in all); An expired security licence in the name of Craig Campbell Davis. 12 Within the living room there was a desk with a number of drawers. A search of the drawers revealed the following: In the top right desk drawer, there was a resealable plastic bag with cash in notes totalling $1,950, an instruction book for an electronic money counter, which appeared to relate to the money counter Mr Davis had in Queensland and also a passport in the name of Craig Campbell Davis; In the third right hand drawer there was a mobile phone, a SIM card and battery, as well as numerous documents that included the appellant's name. In the same drawer there was a plastic bag. Within the bag there were numerous resealable plastic bags. 13 In the flat itself, there were three other mobile phones (a total of four), as well as two Vodaphone "Red SIM Packs". Displayed within the living room were two Samurai swords, mounted on a wall, which were capable of being removed from their sheaths. There was also a mini surveillance camera pointing towards the entrance to the block. 14 Evidence was given by a police sergeant who had expertise in the investigation of the supply and distribution of prohibited drugs. He said the street value of the 300 ecstasy tablets was in the range of $9,000 to $18,000. He also said that certain paraphernalia was habitually used in the supply and distribution of drugs. In the many searches he had undertaken, it was common to find plastic resealable bags, multiple mobile phones and SIM cards, often purchased in false names. The SIM cards were changed regularly and perhaps fortnightly to avoid interception by the police. Further, those who dealt in drugs required security, both from the police and others who may attempt to steal the drugs or the cash accumulated from their sale. It was common to find surveillance systems and fortification of the premises by bars and additional locks, as well as weapons. The case for the appellant. 15 The appellant gave evidence. He described his business in martial arts, conducted on the northern beaches. He held a first degree black belt. He had known his companion, Mr Terrence Day, since he was in high school. Mr Day was an older man, "a boxing, exercise and fitness instructor", who had become a close friend and mentor. 16 Ordinarily Mr Davis lived alone in his one bedroom unit at Dee Why. However, about five days before 22 February 2007, Mr Day moved into the unit because of a break down in his relationship with his girlfriend, Anna. He slept on a couch. Mr Davis gave him a spare set of keys. 17 On 22 February 2007, the appellant and Mr Day travelled in Mr Davis' car to the Gold Coast. He acknowledged that his purpose was to sell the cocaine later found in his possession. He said this, referring to the sale of the drugs: (T 91) "Q. It was Terry's idea? A. Well he brought the idea to me and we decided to go together, it was a good idea at the time. Q. In relation to that idea, the idea wasn't to conduct a martial arts business was it? A. No it wasn't. Q. It was in relation to cocaine? A. Yes." 18 Mr Davis acknowledged that each item found in the main bedroom of the holiday flat in Queensland was his, including the cocaine. He had used the money counter in his martial arts business in Dee Why. It was not kept at the business because the money was not counted at the business premises (T 87). It was counted at his unit. In cross examination he said this: (T 87) "Q. So just going back to what was found in Queensland, you told us you had the money counter for your business, New South Wales, why did you take it to Queensland? A. I thought it would be beneficial for me to have it in Queensland. Q. The only reason you had it in Queensland was to count money from the sale of drugs, wasn't it? A. Yes it was." 19 The money found in his unit ($8,550) was not, according to the appellant, money made through the sale of drugs. He had not put the money in the bank and therefore not withdrawn the money from the bank (T 89). It was money that he had saved. As to the resealable bags found in Queensland, he said this: (T 89) "Q. In relation to Queensland once again, you know that yesterday Detective Harris said that he found four clear resealable plastic bags containing numerous plastic bags located in a yellow bag within the walk in wardrobe of the main bedroom and you've admitted those bags were yours, is that right? A. Yes that's correct." 20 However, according to his evidence, he was not aware that Mr Day had ecstasy tablets in his bedroom in Queensland until much later (T 70). He was not charged in Queensland with being in possession of ecstasy (T 70). In respect of his flat in Sydney and the items found by the police in their search, he had no knowledge of the following: the 300 ecstasy tablets found in the wardrobe of his bedroom; the $2,250 cash found on the same shelf; the multiple resealable plastic bags found in the desk in the living room. 21 He was, however, aware of the $1,950 found in the same desk. That was money earned in his martial arts business. 22 Mr Davis said that he had not seen Mr Day place the drugs, the money or the resealable bags, in the locations where they were found by the police. He could only assume that he had done so. There was opportunity. It had been necessary for Mr Davis to go out on the morning they left for Queensland, 22 February 2007 (T 68). He had packed most of his things the night before and completed his packing just before they left (T 68/69). 23 Mr Davis also provided an explanation for the other items found by the police in his unit. He had collected a number of Samurai swords because of his interest in martial arts. The sword under the bed was a training sword. It was very sharp and dangerous and that is why he kept it under the bed. He believed that was the safest place (T 72). Mr Davis acknowledged that he had seven mobile phones (four in Sydney and three in Queensland) and various SIM cards. Some were for use in his business and others were personal, including phones that he had replaced (T 73). They had each been purchased in his name. He said that he had installed the surveillance camera because, being a ground floor unit, some of his friends were in the habit of climbing over the balcony. With the aid of the camera, he could see who was at the front door, so that he did not have to be confronted by people he did not wish to see. 24 In cross examination, Mr Davis said this: (T 76) "Q. Anyone else that you know see him in your unit at that time? A. Not in the unit. Q. So the only person who can tell us he was there is you, is that right? A. That's correct. Q. The police found no documentation at all in relation to him inside your unit, you understand that? A. I don't believe so, yeah. Q. The only person in that unit was you wasn't it? A. Living in the unit? Q. Staying in the unit and living in the unit was you? A. Not during that week but in general, yes during that five year period I'd lived there alone." 25 A DVD of the police search of his unit showed a chair in the lounge room. On the chair there was something that appeared to be a sheet. On the defence case, it was part of the bedding used by Terry Day. On the Crown case, it was one of a number of items which were clearly washing, which one would infer belonged to Mr Davis. The Notice of Appeal. 26 The Notice of Appeal identified three grounds, as follows: Ground One: The trial miscarried as a result of the trial judge conveying in summing up to the jury that the accused was obliged to provide an explanation for the presence of the drugs within the unit. Ground Two: The trial miscarried as a result of the failure of the trial judge to direct the jury as to the process of reasoning by inference in a circumstantial case. Ground Three: The verdict is unreasonable or cannot be supported by the evidence. 27 I will deal with each ground in turn. Ground One: The trial miscarried as a result of the trial judge conveying in summing up to the jury that the accused was obliged to provide an explanation for the presence of the drugs within the unit. 28 During the course of the summing up, his Honour said this: (SU, p 16) "The accused it was submitted did not have to give evidence, he could have sat silently in court and provided no explanation in relation to the matter at all. Of course I said if I was going to comment I would comment and this is a comment of mine, had he not given some explanation and there is a presumption at law that he was in possession of the drugs provided the quantity was over the particular traffickable quantity, which it was. So he did give an explanation, he was not required to but the explanation is one that you are able to assess in the way in which you are able to assess other witnesses in the case." 29 During his address, counsel for Mr Davis had said this: (T 100) "Ladies and Gentlemen, Craig Davis didn't have to go into the witness box, he didn't have to give evidence because no accused is required to give evidence at all in their trial ..." 30 Shortly after his Honour completed his summing up, and in the presence of the jury, he invited counsel to raise matters of concern. The following exchange took place: (SU, p 19/20) "AVERRE: Your Honour one was in relation to the accused giving evidence and the presumption of law. You Honour just in relation to that the note that I made was there's a presumption of law which would deem possession and your Honour it's just really perhaps a clarification as to the presumption of law and what that presumption is for the quantity which was found in the unit. HIS HONOUR: Do you want me to tell them what the quantity is or? AVERRE: Well your Honour just my submission that what was said in relation to that may not have been particularly clear in that context and just for you to repeat that your Honour. HIS HONOUR: I hope it was clear. I said to you that there was a quantity at law called a traffickable quantity, which I think in this case is – Mr Crown remind me. TRIAL ADVOCATE: 0.75. HIS HONOUR: 0.75 grams. There is no dispute on any of the evidence here that this was well above that quantity. AVERRE: And the presumption once you are in possession of that quantity is one of supply your Honour." 31 His Honour immediately elaborated: (SU, p 20) "HIS HONOUR: The presumption is actually not necessarily supply but what it means is you are presumed to be in possession for supply and as I said to you the accused does have a defence to that particular presumption, can itself prove something on the balance of probabilities but nobody here has suggested that that has been attempted to be done. He was not giving evidence on that basis, he was not suggesting that he had for example another reason for having possession of those drugs. If I could give you an example way outside this case, if you were a doctor for example you might say, 'Well I had these drugs because I was a doctor'. That would be a reason outside having them for the purpose of supply. And he has not raised that issue. His issue is a more fundamental one, he says, 'I wasn't in possession of the drugs to start with, they weren't my drugs' and if they were not his drugs then we do not get to this issue about him having possession of them for the purpose of supply. Is that clarified? AVERRE: It is your Honour, thanks very much." (emphasis added) 32 The jury retired to consider its verdict. The following exchange then took place between his Honour and counsel for the accused, in the jury's absence: (SU, p 21) "HIS HONOUR: Was there something that you wanted to add but you didn't think you could in front of the jury? AVERRE: No you Honour that's fine, just -- HIS HONOUR: One of my problems with your address is when you say in a case like this he doesn't have to give evidence, it's unrealistic. And I know that's where you were having trouble and you're thinking well is that correct to say that in effect he does have to give evidence. Well in law he doesn't have to give evidence, he can sit there and be convicted because there's no alternative, he's found in possession of the drugs, he gives no explanation as to why he's got them, he's convicted, that's the way the law works. If he doesn't give an explanation that's what would happen. So it's a dangerous submission to make because you end up with somebody saying that's unrealistic. AVERRE: Yes and your Honour as I said -- HIS HONOUR: I tried to make it as blancmange if you like as possible but of course it's unrealistic in the sense -- AVERRE: Yes I appreciate that your Honour and your Honour the reason for the clarification was just it may have just been in the way that I've written it down but I'm more than happy with what occurred as a result of the request. HIS HONOUR: The reason I didn't go on with that was because he didn't raise that issue really. AVERRE: Yes. HIS HONOUR: He did not ever get into his explanation as to why he might have possessed -- AVERRE: No and that certainly wasn't part of the defence case your Honour because as you have identified it's that one single issue." 33 Counsel for Mr Davis, on this appeal, asserted error on a number of bases. First, the direction (supra [28]) erroneously conveyed that there was a presumption of law that the appellant was in possession of the drugs unless he provided an explanation. There is no such presumption. 34 Secondly, the direction, according to the appellant, conveyed that he was obliged to give evidence at trial. However, there was no onus upon the appellant, there being no issue of rebuttal under s 29 of the Drug Misuse and Trafficking Act. His case, quite simply, was that he was not in possession. The Crown had the onus to prove that he was. The effect of the direction was comparable to a direction that the evidence of the accused warranted greater scrutiny because he had an interest in the outcome of the case (Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531). 35 Counsel for the Crown, in response, drew attention to the directions given by his Honour before the passage which is the subject of complaint. The only issue in the trial was whether the Crown had proved beyond reasonable doubt that Mr Davis was in possession of the 300 ecstasy tablets. In respect of that issue, it was plain that nothing was presumed. His Honour introduced the issue with these words: (SU, p 3/4) "So important is your task here as the judges of the facts that it is desirable that I should take a few minutes to analyse how the process works. I am not going to do this in great detail because as you know each of the parties has said essentially the Crown case, the factual aspects of the Crown case, are not in dispute. Of course the accused has a different take on the material and the evidence and puts forward another proposition, that is he puts forward a proposition that he does not know who owns the ecstasy in his premises. So I will come back to that issue because that as you probably already know is pretty much the vital issue in the case. The question will ultimately be who was in possession of those drugs? And to find the accused guilty beyond reasonable doubt you have to be satisfied beyond reasonable doubt that he was in possession of those drugs. To find that he was in possession of the drugs you have to be satisfied beyond reasonable doubt that he knew that the drugs were in his apartment." (emphasis added) 36 His Honour then stated, in terms, that the accused was not required to give evidence: (SU, p 4/5) "Then the next issue is well what about the accused? The accused gave evidence in the case. Mr Averre says he was not required to give evidence and that is correct, by law he is not required to give evidence in the case and no inference could be drawn against him because he did not give evidence in the case. How do you assess his evidence? Well you assess it in the same way as you assess the other evidence in the case, you have to make an assessment as to his honesty and his reliability. ..." 37 His Honour then gave what he termed "probably the most important direction of law that I will give", that is, the burden upon the Crown to prove its case in respect of every element of the charge (SU, p 6). His Honour added: (SU, p 6/7) "There is no burden on the accused at all, it is not for the accused to establish his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. It has always been a fundamental part of our system of justice that persons tried in these courts are presumed to be innocent of the crime or crimes alleged against them until a jury of their fellow citizens has been satisfied by the Crown beyond reasonable doubt that they are guilty of the crimes. If you are not satisfied beyond reasonable doubt that the accused is guilty and in this case you will be focusing no doubt on the issue of possession, if you are not satisfied beyond reasonable doubt that the accused was in possession of those drugs in his apartment, then you must find him not guilty. If on the other hand you are satisfied beyond reasonable doubt that the Crown has discharged the onus upon it, you would in accordance with your oath return a verdict of guilty." (emphasis added) 38 His Honour then identified the elements of the charge, indicating that the only contentious element was that Mr Davis supplied the prohibited drug. The concept of supply required the Crown to prove that the offender was "in possession of the drug". His Honour said this: (SU, p 9) "The word supply has the obvious meaning of giving the substance to someone. However, the law also provides an extended meaning when the word supply is being used in this legal context. In this context supply can also mean having in possession for the purpose of supply, and of course that is what the Crown relies on here. As will be obvious from those words, what must be proved is that the accused was in possession of the drugs, the subject of the charge. Those drugs are the 300 ecstasy tablets that were found by police during a search of the accused's home unit in Dee Why ." (emphasis added) 39 The concept of possession was explained and the example given that, even though the members of the jury were sitting in court, the law would regard them as being in possession of the television set they had in their home (SU, p 10). In contrast, if someone were to slip something in your suitcase, unbeknownst to them, it would not be in their possession, even though it would be under their control (SU, p 11). 40 His Honour brought it back to the competing cases presented by each party. He defined the issue in these words: (SU, p 11) "And of course that is in effect what the accused said happened here. He says that he was unaware of the existence of the ecstasy in his apartment. He cannot say absolutely who put it there, but he believes that it was put there by Mr Terrence Day who he has referred to in evidence. His account is that this man, Day, was staying with him in that apartment in Dee Why whilst Mr Day sorted out some domestic issues. He says that Mr Day was sleeping in the lounge room and had been there for about a week. He says that he was never aware that Mr Day left this drug ecstasy in his home unit, he has no knowledge of it whatsoever. The Crown says that you would want to examine that claim fairly closely. But for the purpose of this direction what I can say to you is this. If the accused did not know that the ecstasy was in his apartment, then in the circumstances of this case he could not be found to be in possession of the drugs . On the other hand, if you find beyond reasonable doubt that he was aware of the existence of the drug in his apartment then you could find that he was in possession of that drug." (emphasis added) 41 His Honour dealt with the presumption of possession for the purposes of supply, where the Crown proved possession of more than a traffickable quantity of the prohibited drug. He said this: (SU, p 11/12) "Of course as I have said he must be in possession for the purpose of supplying the drug. Well, how does the Crown prove that? In this case there is a specific legal enactment that facilitates that proof. What the law says if you are in possession of more than a certain quantity, called a traffickable quantity, then you are deemed to be in possession of the drug for the purpose of supply. In this case as the Crown opened to you, and as there is no contest about this, the quantity involved is more than the traffickable quantity. If he is found in possession then he is deemed to have it for the purpose of supply. The law does provide an accused with a defence to this charge, but I need not trouble you with that because that has not been relied upon in this case." 42 Again, his Honour then repeated his statement that the single issue that the jury was required to address, was the following: (SU, p 12) "So the issue really comes down to this issue about possession. If you find beyond reasonable doubt that the accused was in possession of these ecstasy tablets then the offence is made out here. If you are not satisfied that the Crown has established possession beyond reasonable doubt then the accused should be acquitted." 43 A tendency warning was given in respect of the Queensland evidence and then the competing cases of the Crown and Mr Davis were summarised. Whilst dealing with the case for Mr Davis, the direction the subject of Ground 1 was given, followed by the redirection. 44 It has to be said, with respect to his Honour, that in an otherwise lucid summary of the issues, the passage which is the subject of criticism is somewhat opaque. Was it a reference to the presumption under s 29 of the Act (arising from the possession of more than a traffickable quantity of the prohibited drug), as the redirection would appear to suggest? Or was his Honour referring to the fact that there was, at the end of the Crown case, simply no explanation for the ecstasy tablets and other items found in Mr Davis' flat? There was, in this case, no record of interview, where the accused gave his version, no doubt because he was in Queensland when his flat was searched. So, if the only evidence to go to the jury were the evidence of the Crown, then the items in the bedroom of his flat would appear to be in his possession, even though he was absent, in the same way as the television was in the possession of the jurors, even though they were sitting in court. 45 The direction under attack was opaque because, as his Honour said, he endeavoured to water down his comment to make it "as blancmange, if you like, as possible" (supra [31]). Although it would have been better had the comment not been made (because it was obscure), the jury could have been in no doubt as to the issue it had to determine, namely whether Mr Davis was in possession of the ecstasy in his flat, in that he knew of its presence. The redirection dealt with "the presumption". It was clearly something not relied upon by Mr Davis and therefore not particularly relevant. Counsel for Mr Davis at trial was satisfied. 46 I would dismiss Ground 1, although I would give leave under Rule 4. Ground Two: The trial miscarried as a result of the failure of the trial judge to direct the jury as to the process of reasoning by inference in a circumstantial case. 47 Counsel for Mr Davis drew attention to the only instruction given to the jury concerning the drawing of inferences: (SU, p 3) "What you are required to do in finding the facts is not very different from what each of us commonly does individually although perhaps subconsciously in our everyday lives. We are commonly confronted with situations where different people give us different versions of something that has happened. Sometimes the situation is one where for one reason or another we have to choose between those different versions. In such everyday situations we probably make our decisions without spelling out in our minds just how we are doing it." 48 Here, according to the appellant, the Crown relied upon what was essentially a circumstantial case. The circumstances may be summarised as follows: First, the location of the drugs in the wardrobe of the appellant's bedroom in his unit, amongst his clothes. Secondly, the $2,250 cash found in the same location. Thirdly, the acknowledgement of Mr Davis in cross examination that, in packing his bag just before he left, he collected clothes from the cupboard and yet claimed to be unaware of either the drugs or the money. Fourthly, the paraphernalia in the unit that is commonly associated with a drug dealer, namely, the resealable plastic bags, the multiple mobile phones (three in Queensland and four in his flat), and SIM cards, as well as the large amount of cash. Fifthly, ownership of a money counter that he had taken from his flat to Queensland for the express purpose of counting money from the sale of drugs. Sixthly, the surveillance equipment that he had installed at the entrance of the security block where he had his unit. Finally, the weapons scattered throughout the flat, including under his bed. He carried with him in Queensland, where he was admittedly engaged in drug selling, a telescopic baton. 49 There were nonetheless, according to the appellant, competing inferences in respect of each of these items provided by Mr Davis in his explanation, given in evidence. Mr Day had been staying at the flat. On the morning they left, Mr Day was alone in the flat. Mr Davis swore that he knew nothing of the ecstasy tablets, nor the money in the wardrobe, nor the resealable bags in the desk. Mr Day, on the appellant's case, must have been responsible. 50 There were, according to the appellant, circumstances which supported that conclusion. Mr Day, not Mr Davis, had ecstasy tablets in his possession in his bedroom in Queensland. He alone was charged with their possession. The tablets had the same Ying Yang imprint as those found in the Dee Why flat. 51 Mr Davis, in his evidence, furnished an explanation for the other items said to be incriminating by the Crown. The money counter owned by the appellant was used in his martial arts business, as were some of the mobile telephones. It was unsurprising, given his interest in martial arts, that he should have Samurai swords in his flat. The surveillance camera had been installed because his unit was on the ground floor and his friends were in the habit of climbing over the balcony. 52 There being competing inferences, it was important, according to the appellant, that the jury should be given a circumstantial direction and an elaboration upon the drawing of inferences, including the potential for a wrong conclusion. Attention was drawn to The Queen v Clarke (1995) 78 A Crim R 226, where Hunt CJ at CL (the other members of the Court agreeing), said this: (at 231) "An accused in the circumstances of this appellant need point only to evidence from which it can be said that there was a reasonable possibility that the circumstances pointed to someone other than himself as being guilty of this offence. If he is able to do so, then a circumstantial evidence direction, in my view, should usually be given in order to enable the jury to go about their task properly. Although the evidence in the present case was very slight, it could be interpreted as raising such a reasonable possibility, and a circumstantial evidence direction should therefore have been given in this particular case in order to enable the jury to go about their task properly." (authorities omitted - emphasis in original) 53 Attention was also drawn to the exchange between the trial Judge and counsel, part way through the summing up, where counsel asked for an elaboration in respect of the drawing of inferences. Before that request was made, however, his Honour said this, shortly before the luncheon adjournment: (SU, p 7/8) "HIS HONOUR: That was a very much truncated version of what would normally be given as the introductory part of the summing-up. But I just can't see the point in going on and on about the witnesses in the circumstances, unless somebody has a different view which I give you the opportunity to say. TRIAL ADVOCATE: No your Honour. AVERRE: No your Honour." 54 After lunch, counsel had second thoughts, and made the following request: (SU, p 8) "AVERRE: Your Honour, you flagged prior to luncheon adjournment about the direction on possession from the bench book. I've got no difficulties with that and I just wanted to raise with your Honour before the jury are brought back in whether your Honour was thinking of expanding upon the reference to inferences in the context of circumstantial evidence. Your Honour touched upon it in a truncated manner just in terms of the commonsense of the jury in their everyday lives, how they draw inferences. HIS HONOUR: I can't see how it would help one way or the other. I mean, it's a very clear case, it's kind of like a black and white case, this case. It's not a case of drawing a series of inferences or a circumstantial case as to possession. It's there and the question is whose is it. AVERRE: Your honour, yes, and obviously the Crown rely upon all the circumstantial evidence in that it was in his bedroom in the unit, and I suppose just in terms of the indicia of drug supply where there's an explanation given, I suppose it's whether that's accepted or rejected and then -- HIS HONOUR: Well, I don't think a circumstantial evidence direction is warranted or usual in this sort of case. I don't know, what do you think Mr Crown? I'm not inclined to give it. TRIAL ADVOCATE: No, in my submission I don't think it's required because it's either one way or the other, I believe. HIS HONOUR: The question with these cases is the jury have to understand what has to be proved beyond reasonable doubt. The trouble with a circumstantial case is sometimes it's not crystal clear. But there's no doubt here what they have to understand, or there shouldn't be by the time I'm finished. But if you've got any problems after I've finished then let me know. AVERRE: I will your Honour, thank you your Honour." (emphasis added) 55 Counsel for the appellant did not thereafter seek an elaboration upon the previous direction. 56 According to the Crown, a circumstantial direction was not necessary. There was, before the jury, a very limited issue. The Crown made the following submissions: (CS [19]-[20]) "19. ... his Honour pointed out that the only issue in the trial was the issue of possession and that the burden was on the prosecution to prove that beyond reasonable doubt. 20. As the failure of counsel to seek any redirection makes clear, when the charge is considered as a whole it cannot be said that there was any inadequacy in the instructions given to the jury concerning their task. Leave pursuant to Rule 4 should not be granted." 57 I agree with the Crown's submission. I would refuse leave under Rule 4. Ground Three: The verdict is unreasonable or cannot be supported by the evidence. 58 The test to be applied by this Court in determining whether a verdict is unreasonable or cannot be supported on the evidence, is whether "upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (M v The Queen [1994] HCA 63; (1994) 181 CLR 487, per Mason CJ, Deane, Dawson and Toohey JJ, at 493). Their Honours added: (at 493) "... But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (footnote omitted) 59 Here, the appellant submitted that the suggestion by Mr Davis that the drugs and money found in the wardrobe of his room had been placed there without his knowledge, was "not one of such inherent implausibility that it was inevitable that it would be dismissed" (AS [49]). Mr Day could not give the Queensland police a residential address. He had belongings in Mr Davis' car, which was some confirmation that he had travelled from Sydney to the Gold Coast with him. The "indicia of supply" were equally consistent with the admitted involvement of the appellant in the supply of cocaine (not ecstasy) in Queensland. 60 Here, to my mind, it was unquestionably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Indeed, it has to be said that it was a reasonably strong Crown case. It was unsurprising, on the material presented, that the appellant should have been convicted. Order. 61 The order I propose is that the appeal should be dismissed. 62 HOEBEN J: I agree with Kirby J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.